Health MEC attacks lawyers

Durban - Kwazulu-Natal’s health MEC has come out guns blazing, attacking “unscrupulous” lawyers who are out to make money by recruiting patients to initiate lawsuits.

Last year, the provincial Health Department had to defend itself against claims totalling R1 billion.

This was affecting health care professionals’ ability to do their jobs, according to Sibongiseni Dhlomo.

He told the provincial legislature in Pietermaritzburg on Thursday that lawyers had started a new money-making scheme of placing adverts in newspapers encouraging patients to sue for mistakes caused by health professionals.

Last year alone the department was involved in litigation amounting to more than R1bn, according to KZN Health Department head Sibongile Zungu.

“We are worried about lawyers putting up adverts to say, ‘Come here if you find any hospital that has made any mistake in your treatment.’ That is just immoral,” Dhlomo said after a health portfolio committee meeting.

His department had reported the matter to national Health Minister Aaron Motsoaledi, who was aware of this countrywide practice.

“We cannot provide service to our people with lawyers putting guns to our heads,” Dhlomo said.

Some of the litigation related to genuine and deliberate acts of negligence that could not be condoned.

“But we find it very strange when we have lawyers at the gates of hospitals encouraging patients. They say, ‘When you go to hospital come back to tell me what they did to you.’ Some of them do not even understand hospital procedures.

“In cases where negligence cannot be proven in court, patients lose their money because they have paid the lawyers to deal with cases,” he said.

Dhlomo also pointed a finger at “moonlighting” health professionals, saying they were to blame for most cases of negligence. Senior doctors, nurses and pharmacists worked at their private practices when they were supposed to be working for the state. Junior staff were being left unsupervised and, as a result, were making errors, he said.

Zungu said it was likely that the amount of legal action taken against the department had risen from last year’s figure, although she could not provide the latest figures.

“These lawyers have a tendency of putting claims much higher,” she said.

Some of the claims were complicated by the fact that the cases happened years ago and the department could not find records to use for its defence in court. “Then the cases get dealt with in terms of probabilities, as we do not have records to bring evidence that certain interventions were done (to help patients). This in turn pushes the claims higher.”

The Health Professions Council of South Africa (HPCSA) responded to Dhlomo’s assertions saying that if one considered the number of daily interactions between the 180 000 medical practitioners registered with it, and their patients, the number of complaints which it received was negligible.

However, the council had seen an increase in the number of complaints it received nationally. It received 2 997 complaints in the 2012/13 financial year.

Poobalan Govindasamy, the president of the KZN Law Society, said his organisation invited Dhlomo to report any unethical and unprofessional conduct by any of its members so that it could conduct its own investigations.

“If it is thereafter found that any of our members are guilty of contravening our rules in regard to touting, including advertising which is not permitted, and the charging of excessive fees or any other unprofessional conduct, such members will be dealt with appropriately,” Govindasamy said.

Writing in The Mercury recently, attorney Andrew Eastes, of Tomlinson Mnguni James Attorneys, said that most (if not all) medical negligence matters were dealt with on a “no win, no fee basis”.

Eastes said attorneys played a vital role in improving the service in government hospitals, and that by handling cases in adherence to the Contingency Fee Act, the public was given access to litigation it could not afford otherwise.

An attorney could not take 25 percent of a client’s successful claim amount without first showing the client how many hours of work had been undertaken at the hourly rate which was set out in the written contingency fee agreement.

Eastes explained that the Contingency Fee Act meant that if a birth asphyxia matter was settled for R20 million, for example, the attorney would first calculate 25 percent of R20m, which would be R5m. The attorney was then obliged to provide the client with details of the number of hours worked at his or her hourly rate. If the attorney’s normal rate was R3 000 an hour and he or she worked 100 hours, which totalled R300 000, he or she would then be able to charge a success fee of R300 000 and the total fee would be R600 000. And so, in terms of the act, the attorney was allowed to charge the client R600 000 and not R5m.